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Exhibit 2.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
March 27, 2001 by and among PhotoMedex, Inc., a Delaware corporation (the
"Company"), (ii) each person listed on Exhibit A attached hereto (collectively,
the "Initial Investors" and each individually, an "Initial Investor"), and (iii)
each person or entity that subsequently becomes a party to this Agreement
pursuant to, and in accordance with, the provisions of Section 12 hereof
(collectively, the "Investor Permitted Transferees" and each individually an
"Investor Permitted Transferee").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investors, and the Initial Investors have agreed to purchase from the Company,
1,225,000 shares (the "Purchased Shares") of the Company's common stock, $0.01
par value per share (the "Common Stock"), all upon the terms and conditions set
forth in that certain Stock Purchase Agreement, dated of even date herewith,
between the Company and the Initial Investors (the "Stock Purchase Agreement");
and
WHEREAS, the terms of the Stock Purchase Agreement provide that it
shall be a condition precedent to the closing of the transactions there under,
for the Company and the Initial Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
therefore below or elsewhere in this Agreement as described below:
"Board" shall mean the board of directors of the Company.
"Closing" shall have the meaning ascribed to such term in the Stock
Purchase Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated there under.
"Investors" shall mean, collectively, the Initial Investors and the
Investor Permitted Transferees; provided, however, that the term "Investors"
shall not include any of the Initial Investors or any of the Investor Permitted
Transferees that ceases to own or hold any Purchased Shares.
"Majority Holders" shall mean, at the relevant time of reference
thereto, those Investors holding and/or having the right to acquire, as the case
may be, more than fifty percent (50%) of the Registrable Shares held by all of
the Investors.
"Qualifying Holder" shall have the meaning ascribed thereto in Section
12 hereof.
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"Registrable Shares" shall mean the Purchased Shares, provided,
however, such term shall not, after the Mandatory Registration Termination Date,
include any of the Purchased Shares that become or have become eligible for
resale pursuant to Rule 144 or pursuant to Regulation S.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated there under.
2. EFFECTIVENESS; TERMINATION. This Agreement shall become effective
and legally binding only if the Closing occurs. This Agreement shall terminate
and be of no further force or effect, automatically and without any action being
required of any party hereto, upon the termination of the Stock Purchase
Agreement pursuant to Section 8 thereof.
3. MANDATORY REGISTRATION.
(a) Within 10 business days after the Closing, the Company will prepare
and file with the SEC a registration statement on Form S-3 for the purpose of
registering under the Securities Act all of the Registrable Shares for resale
by, and for the account of, the Investors as selling stockholders there under
(the "Registration Statement"). The Registration Statement shall permit the
Investors to offer and sell, on a delayed or continuous basis pursuant to Rule
415 under the Securities Act, any or all of the Registrable Shares. The Company
agrees to use reasonable efforts to cause the Registration Statement to become
effective as soon as practicable. The Company shall be required to keep the
Registration Statement effective until such date that is the earlier of (i) the
date when all of the Registrable Shares registered there under shall have been
sold, (ii) the date on which the Registrable Shares may be resold pursuant to an
exemption under Rule 144(k) promulgated under the Securities Act, or (iii) the
second anniversary of the Closing, subject to extension as set forth below (such
date is referred to herein as the "Mandatory Registration Termination Date").
Thereafter, the Company shall be entitled to withdraw the Registration Statement
and the Investors shall have no further right to offer or sell any of the
Registrable Shares pursuant to the Registration Statement (or any prospectus
relating thereto). In the event the right of the selling Investors to use the
Registration Statement (and the prospectus relating thereto) is delayed or
suspended pursuant to Sections 5(c) or 11 hereof, if the events described in
subsection (a)(i) or (ii) have not yet occurred, the Company shall be required
to extend the Mandatory Registration Termination Date beyond the second
anniversary of the Closing by the same number of days as such delay or
Suspension Period (as defined in Section 11 hereof).
(b) In the event that the Registration Statement is not declared
effective by the SEC within ninety (90) days after the Closing Date, the Company
will pay each Purchaser a penalty of 2.0% of the original Purchase Price (on a
prorated basis) for each 30-day period thereafter until
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such time that the Registration Statement is declared effective by the SEC (all
such payments to be made in cash and nonrefundable, pro-rated for partial
months) and payable at the earlier of (1) the end of each such 30-day period or
(2) the declared effectiveness of the Registration Statement.
(c) The offer and sale of the Registrable Shares pursuant to the
Registration Statement shall not be underwritten.
4. "PIGGYBACK" REGISTRATION RIGHTS.
(a) If, at any time after the Mandatory Registration Termination Date,
the Company proposes to register any of its Common Stock under the Securities
Act, whether as a result of a primary or secondary offering of Common Stock or
pursuant to registration rights granted to holders of other securities of the
Company (but excluding in all cases any registrations to be effected on Forms
S-4 or S-8 or other applicable successor Forms), the Company shall, each such
time, give to the Investors holding Registrable Shares written notice of its
intent to do so. Upon the written request of any such Investor given within 20
days after the giving of any such notice by the Company, the Company shall use
reasonable efforts to cause to be included in such registration the Registrable
Shares of such selling Investor, to the extent requested to be registered;
provided that (i) the number of Registrable Shares proposed to be sold by such
selling Investor is equal to at least seventy-five percent (75%) of the total
number of Registrable Shares then held by such participating selling Investor,
(ii) such selling Investor agrees to sell those of its Registrable Shares to be
included in such registration in the same manner and on the same terms and
conditions as the other shares of Common Stock which the Company proposes to
register, and (iii) if the registration is to include shares of Common Stock to
be sold for the account of the Company or any party exercising demand
registration rights pursuant to any other agreement with the Company, the
proposed managing underwriter does not advise the Company that in its opinion
the inclusion of such selling Investor's Registrable Shares (without any
reduction in the number of shares to be sold for the account of the Company or
such party exercising demand registration rights) is likely to affect materially
and adversely the success of the offering or the price that would be received
for any shares of Common Stock offered, in which case the rights of such selling
Investor shall be as provided in Section 4(b) hereof.
(b) If a registration pursuant to Section 4(a) hereof involves an
underwritten offering and the managing underwriter shall advise the Company in
writing that, in its opinion, the number of shares of Common Stock requested by
the Investors to be included in such registration is likely to affect materially
and adversely the success of the offering or the price that would be received
for any shares of Common Stock offered in such offering, then, notwithstanding
anything in Section 4(a) to the contrary, the Company shall only be required to
include in such registration, to the extent of the number of shares of Common
Stock which the Company is so advised can be sold in such offering, (i) first,
the number of shares of Common Stock proposed to be included in such
registration for the account of the Company and/or any stockholders of the
Company (other than the Investors) that have exercised demand registration
rights, in accordance with the priorities, if any, then existing among the
Company and/or such stockholders of the Company with registration rights (other
than the Investors), and (ii) second, the shares of Common Stock requested to be
included in such registration by all other
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stockholders of the Company who have piggyback registration rights (including,
without limitation, the Investors), pro rata among such other stockholders
(including, without limitation, the Investors) on the basis of the number of
shares of Common Stock that each of them requested to be included in such
registration.
(c) In connection with any offering involving an underwriting of
shares, the Company shall not be required under Section 4 hereof or otherwise to
include the Registrable Shares of any Investor therein unless such Investor
accepts and agrees to the terms of the underwriting, which shall be and
reasonable and customary, as agreed upon between the Company and the
underwriters selected by the Company.
5. OBLIGATIONS OF THE COMPANY. In connection with the Company's
obligation under Section 3 and 4 hereof to file the Registration Statement with
the SEC and to use its best efforts to cause the Registration Statement to
become effective as soon as practicable, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to
the Registration Statement and the prospectus used in connection therewith as
may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Shares covered by the Registration
Statement;
(b) Furnish to the selling Investors such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents (including, without
limitation, prospectus amendments and supplements as are prepared by the Company
in accordance with Section 5(a) above) as the selling Investors may reasonably
request in order to facilitate the disposition of such selling Investors'
Registrable Shares;
(c) Notify the selling Investors, at any time when a prospectus
relating to the Registration Statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in or relating to the Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading in light of the circumstances in which they
are made; and, thereafter, the Company will promptly prepare (and, when
completed, give notice to each selling Investor) a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading in light of the circumstances in which they are made; provided
that upon such notification by the Company, the selling Investors will not offer
or sell Registrable Shares until the Company has notified the selling Investors
that it has prepared a supplement or amendment to such prospectus and delivered
copies of such supplement or amendment to the selling Investors (it being
understood and agreed by the Company that the foregoing proviso shall in no way
diminish or otherwise impair the Company's obligation to promptly prepare a
prospectus amendment or supplement as above provided in this Section 5(c) and
deliver copies of same as above provided in Section 5(b) hereof); and
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(e) Use commercially reasonable efforts to register and qualify the
Registrable Shares covered by the Registration Statement under such other
securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate in the opinion of the Company and the managing underwriters, if any,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, and provided further
that (notwithstanding anything in this Agreement to the contrary with respect to
the bearing of expenses) if any jurisdiction in which any of such Registrable
Shares shall be qualified shall require that expenses incurred in connection
with the qualification therein of any such Registrable Shares be borne by the
selling Investors, then the selling Investors shall, to the extent required by
such jurisdiction, pay their pro rata share of such qualification expenses.
6. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Investors shall furnish to the Company such information regarding
them and the securities held by them as the Company shall reasonably request and
as shall be required in order to effect any registration by the Company pursuant
to this Agreement.
7. EXPENSES OF REGISTRATION. All expenses incurred in connection with
the registration of the Registrable Shares pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
8. DELAY OF REGISTRATION. The Investors shall not take any action to
restrain, enjoin or otherwise delay any registration as the result of any
controversy which might arise with respect to the interpretation, or
implementation of this Agreement.
9. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each selling Investor, any investment banking firm acting as an
underwriter for the selling Investors, any broker/dealer acting on behalf of any
selling Investors and each officer and director of such selling Investor, such
underwriter, such broker/dealer and each person, if any, who controls such
selling Investor, such underwriter or broker/dealer within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading in light of the
circumstances in which they are made; and will reimburse such selling Investor,
such underwriter, broker/dealer or such officer, director or controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such
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loss, claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 9(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, damage, liability or action to the extent that it arises out
of or is based upon an untrue statement or alleged untrue statement or omission
made in connection with the Registration Statement, any preliminary prospectus
or final prospectus relating thereto or any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
in reliance upon and in conformity with written information furnished expressly
for use in connection with the Registration Statement or any such preliminary
prospectus or final prospectus by the selling Investors, any underwriter for
them or controlling person with respect to them.
(b) To the extent permitted by law, each selling Investor will
severally and not jointly indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any investment banking firm acting as underwriter for the Company or the
selling Investors, or any broker/dealer acting on behalf of the Company or any
selling Investors, and all other selling Investors against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling person, underwriter, or broker/dealer or such other selling Investor
may become subject to, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement or any preliminary prospectus or final
prospectus, relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which they
are made, in each case to the extent and only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, in any preliminary prospectus or final prospectus
relating thereto or in any amendments or supplements to the Registration
Statement or any such preliminary prospectus or final prospectus, in reliance
upon and in conformity with written information furnished by the selling
Investor expressly for use in connection with the Registration Statement, or any
preliminary prospectus or final prospectus; and such selling Investor will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, underwriter, broker/dealer or other
selling Investor in connection with investigating or defending any such loss,
claim, damage, liability or action, provided, however, that the liability of
each selling Investor hereunder shall be limited to the proceeds (net of
underwriting discounts and commissions, if any) received by such selling
Investor from the sale of Registrable Shares covered by the Registration
Statement, and provided, further, however, that the indemnity agreement
contained in this Section 9(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of those selling Investor(s) against which the request for
indemnity is being made (which consent shall not be unreasonably withheld).
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(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume at its expense the defense thereof with counsel
mutually satisfactory to the indemnifying parties with the consent of the
indemnified party which consent will not be unreasonably withheld, conditioned
or delayed. In the event that the indemnifying party assumes any such defense,
the indemnified party may participate in such defense with its own counsel and
at its own expense, provided, however, that the counsel for the indemnifying
party shall act as lead counsel in all matters pertaining to such defense or
settlement of such claim and the indemnifying party shall only pay for such
indemnified party's expenses for the period prior to the date of its
participation on such defense. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to his ability
to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 9, but the omission so to notify the
indemnifying party will not relieve him of any liability which he may have to
any indemnified party otherwise other than under this Section 9.
(d) Notwithstanding anything to the contrary herein, the indemnifying
party shall not be entitled to settle any claim, suit or proceeding unless in
connection with such settlement the indemnified party receives an unconditional
release with respect to the subject matter of such claim, suit or proceeding and
such settlement does not contain any admission of fault by the indemnified
party.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
the Investors the benefits of Rule 144 and any other rule or regulation of the
SEC that may at any time permit the Investors to sell the Purchased Shares to
the public without registration, the Company agrees to use commercially
reasonable efforts: (i) to make and keep public information available, as those
terms are understood and defined in the General Instructions to Form S-3, or any
successor or substitute form, and in Rule 144, (ii) to file with the SEC in a
timely manner all reports and other documents required to be filed by an issuer
of securities registered under the Securities Act or the Exchange Act, (iii) as
long as any Investor owns any Purchased Shares, to furnish in writing upon such
Investor's request a written statement by the Company that it has complied with
the reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, and to furnish to such Investor a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents so
filed by the Company as may be reasonably requested in availing such Investor of
any rule or regulation of the SEC permitting the selling of any such Purchased
Shares without registration and (iv) undertake any additional actions reasonably
necessary to maintain the availability of the Registration Statement or the use
of Rule 144.
11. DEFERRAL AND LOCK-UP.
(a) Notwithstanding anything in this Agreement to the contrary, if the
Company shall furnish to the selling Investors a certificate signed by the
President or Chief Executive Officer of
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the Company stating that the Board of Directors of the Company has made the good
faith determination (i) that continued use by the selling Investors of the
Registration Statement for purposes of effecting offers or sales of Registrable
Shares pursuant thereto would require, under the Securities Act, premature
disclosure in the Registration Statement (or the prospectus relating thereto) of
material, nonpublic information concerning the Company, its business or
prospects or any proposed material transaction involving the Company, (ii) that
such premature disclosure would be materially adverse to the Company, its
business or prospects or any such proposed material transaction or would make
the successful consummation by the Company of any such material transaction
significantly less likely and (iii) that it is therefore essential to suspend
the use by the Investors of such Registration Statement (and the prospectus
relating thereto) for purposes of effecting offers or sales of Registrable
Shares pursuant thereto, then the right of the selling Investors to use the
Registration Statement (and the prospectus relating thereto) for purposes of
effecting offers or sales of Registrable Shares pursuant thereto shall be
suspended for a period (the "Suspension Period") of not more than 60 days after
delivery by the Company of the certificate referred to above in this Section 11.
During the Suspension Period, none of the Investors shall offer or sell any
Registrable Shares pursuant to or in reliance upon the Registration Statement
(or the prospectus relating thereto). The Company may not exercise this right
more than three times in each year after the Closing.
12. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Investor
under this Agreement shall be transferred or assigned to any person unless (i)
such person is a Qualifying Holder (as defined below), and (ii) such person
agrees to become a party to, and bound by, all of the terms and conditions of,
this Agreement by duly executing and delivering to the Company an Instrument of
Adherence in the form attached as Exhibit B hereto. For purposes of this Section
12, the term "Qualifying Holder" shall mean, with respect to any Investor, (i)
any partner thereof, (ii) any corporation, partnership controlling, controlled
by, or under common control with, such Investor or any partner thereof, or (iii)
any other direct transferee from such Investor of at least 50% of those
Registrable Shares held or that may be acquired by such Investor. None of the
rights of any Investor under this Agreement shall be transferred or assigned to
any Person (including, without limitation, a Qualifying Holder) that acquires
Registrable Shares in the event that and to the extent that such Person is
eligible to resell such Registrable Shares pursuant to Rule 144(k) of the
Securities Act or may otherwise resell such Registrable Shares pursuant to an
exemption from the registration provisions of the Securities Act.
13. ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and it also supersedes any and all prior negotiations,
correspondence, agreements or understandings with respect to the subject matter
hereof.
14. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or terminated,
and no rights or provisions may be waived, except with the written
consent of the Majority Holders and the Company.
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(b) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of
Massachusetts, and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, personal
representatives, successors or assigns, provided that the terms and
conditions of Section 12 hereof are satisfied. This Agreement shall
also be binding upon and inure to the benefit of any transferee of any
of the Purchased Shares provided that the terms and conditions of
Section 12 hereof are satisfied. Notwithstanding anything in this
Agreement to the contrary, if at any time any Investor shall cease to
own any Purchased Shares, all of such Investor's rights under this
Agreement shall immediately terminate.
(c) (i) Any notices, reports or other correspondence
(hereinafter collectively referred to as "correspondence") required or
permitted to be given hereunder shall be sent by courier (overnight or
same day) or telecopy or delivered by hand to the party to whom such
correspondence is required or permitted to be given hereunder. The date
of giving any notice shall be the date of its actual receipt.
(ii) All correspondence to the Company shall be
addressed as follows:
PhotoMedex, Inc.
0 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X' Xxxxxxx, President
Telecopier: (000) 000-0000
with a copy to:
Xxxx, Forward, Xxxxxxxx & Scripps LLP
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(iii) All correspondence to any Investor shall be
sent to such Purchaser at the address set forth in Exhibit A.
(d) Any entity may change the address to which correspondence
to it is to be addressed by notification as provided for herein.
(e) The parties acknowledge and agree that in the event of any
breach of this Agreement, remedies at law may be inadequate, and each
of the parties hereto shall be entitled to seek specific performance of
the obligations of the other parties hereto and such appropriate
injunctive relief as may be granted by a court of competent
jurisdiction.
(f) This Agreement may be executed in a number of
counterparts, each of which together shall for all purposes constitute
one Agreement, binding on all the parties hereto notwithstanding that
all such parties have not signed the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
PhotoMedex, Inc.
By: _____________________________
Name: Xxxxxx XxXxxxx
Title: Chief Financial Officer
THE INITIAL INVESTOR'S SIGNATURE TO THE INVESTOR QUESTIONNAIRE DATED EVEN DATE
HEREWITH SHALL CONSTITUTE THE INITIAL INVESTOR'S SIGNATURE TO THIS REGISTRATION
RIGHTS AGREEMENT.
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EXHIBIT A
Name and Address
Baystar Capital LP
c/o Baystar Capital
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Baystar International LTD.
c/o Baystar Capital
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Clarion Capital Corporation
x/x Xxxxxxx Xxxxxxx
Xxxx Xxxxxxx Xxxxx
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Clarion Partners, L.P.
x/x Xxxxxxx Xxxxxxx
Xxxx Xxxxxxx Xxxxx
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Clarion Offshore Fund Ltd.
x/x Xxxxxxx Xxxxxxx
Xxxx Xxxxxxx Xxxxx
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Marcuard Xxxx & Cie S.A.
0 xxx xxx Xxxxx
X.X. Xxx 0000
0000 Xxxxxx 0
Xxxxxxxxxxx
Xxxxx Partners, L.P.
c/o XX Xxxxx
000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
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The Common Fund
c/o XX Xxxxx
000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
Trinkaus & Xxxxxxxxx Int'l.
c/o XX Xxxxx
000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
Matterhorn Offshore Fund
c/o XX Xxxxx
000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx, XX 00000
J. Xxxxxx Xxxxxxx R/O XXX XX
Xxxxxxx Investment Group
00000 Xxxxx Xxxxxx
#0000
Xxx Xxxxxxx, XX 00000
Fidelity National Title Insurance Co.
0000 Xxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Xxxxxx & XxXxxxx International
c/o Gruber & McBaine Capital Management
00 Xxxxxx Xxxxx, Xxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
Lagunitas Partners L.P.
c/o Gruber & McBaine Capital Management
00 Xxxxxx Xxxxx, Xxxxxxxxx
Xxx Xxxxxxxxx, XX 00000x
Gryphon Master Fund
c/o Gryphon Master Fund L.P.
000 Xxxxxxxx Xxxxx, #000
Xxxxxx, Xxxxx 00000
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Lancaster Investment Partners, L.P.
Parkview Tower
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
EDJ Limited
c/o Porter Capital
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Xxx Xxxxxx Partners
c/o Porter Capital
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Sonz Partners LP
c/o Sonz Partners
000 Xxxxxxxxx Xxx
Xxxxx #0000
Xxxx Xxxxxx, XX 00000
Talkot Crossover Fund, L.P.
c/o Talkot Fund
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Xxxxxx X. Xxxx
c/o Talkot Fund
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
North Olmsted Partners, L.P.
c/x Xxxxxxx Capital, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
TCMP3 Partners LP
c/o Titan Capital Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx 00000
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Xxxxxxx Xxxxxxxx Investment Fund
c/o Pacific Growth Equities, Inc.
Four Xxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
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EXHIBIT B
Instrument of Adherence
Reference is hereby made to that certain Registration Rights Agreement, dated as
of March 27, 2001, among PhotoMedex, Inc., a Delaware corporation (the
"Company"), the Initial Investors and the Investor Permitted Transferees, as
amended and in effect from time to time (the "Registration Rights Agreement").
Capitalized terms used herein without definition shall have the respective
meanings ascribed thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of [___________] shares
of common stock, par value $0.01 per share (the "Common Stock"), of the
Company], hereby agrees that, from and after the date hereof, the undersigned
has become a party to the Registration Rights Agreement in the capacity of an
Investor Permitted Transferee, and is entitled to all of the benefits under, and
is subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Investor Permitted
Transferees. This Instrument of Adherence shall take effect and shall become a
part of the Registration Rights Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
___________________.
Signature: __________________________________
Name:
Title:
Accepted:
Company Name
By: __________________________________
Name:
Title:
Date: ___________________________
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